*1 damage amount of her the trial court on remand prove up the to “determine with reasonable certainty Weekley’s In II dam- against Wagner. Brownlee (Em- ages consistent with opinion.” prejudgment determined that inter- Court added). phasis The trial court’s task on be assessed on the devise owed est should remand is not enviable as “reasonable cer- Weekley of the by the estate because tainty” is not found this record. unexplained delay selling equip- However, in- only ment. Brownlee II of the estate’s obli- question
volved GILBERTSON, Justice, Chief Weekley. gations questions The of joins in part this concurrence and dissent fiduciary duty Wagner’s breach part.
damages caused the breach proximately presented
were never or addressed in II
Brownlee II. The notion that Brownlee Weekley respon-
somehow relieved of her
sibility proof damages to offer basic
against Wagner flawed. Finally, affirmance of the trial Forell,
court is dictated Schmidt v. (S.D.1981). Schmidt, fol-
N.W.2d 876 trial,
lowing a bench the trial court found in an automobile
the defendant was liable
past
accident and
certain
dam-
awarded
there was evidence the record of South Dakota. Court plaintiff damages had sustained for future Argued Oct. 2009. earning capacity, loss Schmidt properly recognized Court that the deter- Decided Feb. damages,
mination of the amount of those fact,
if any, question was a for the finder of
not this Court. majority remands this case damages
for the trial court to determine require
with a record that will the trial speculate order to calculate by the
damages proximately caused Ironically, majority
breach. directs *4 Parsons, Johnson, Hei-
Ronald A. Jr. Johnson, LLP, & Sioux depriem, Abdallah Dakota, Falls, Attorney plaintiff South appellant. Farrell, Strange, T. Brewers of Gregory Brewers, PC, Falls, & Sioux Johnson Dakota, Attorney for defendant South appellee.
GILBERTSON, Justice. Chief trial, custody After a Father re- care of the three primary physical ceived during marriage. Moth- children born contending the trial court appeals er not con- abused its discretion when did primary physical her status as the sider all other child parent paramount argues factors. Mother also its when it trial court abused discretion allegedly accept failed to eval- on the report uator’s and failed focus evidentiary affirm. entire record. We
FACTS Kreps, age thirty-eight trial in September the time of Kelly Kreps, age forty-four at the time Jo trial, couple in 2002. The began dating child in pregnant became with their first married year. couple the fall of that Kelly calling their son was ended in January police who ar- 23, 2003, Moines, An Des rested Jason. automatic restraining born June Iowa, couple against resided. order was entered him. where the Jason was originally charged with domestic assault. dated, During couple the time the charge The domestic assault dropped finding lawyer a Jason assisted and Jason received a deferred sentence on help get her reinstated into medical disorderly a charge. conduct complete school. was able to her degree spring of 2004. She medical moved to South Dakota in Kirskville, accepted residency then June of 2005 and served Jason with di- Missouri, community four papers July petition three to hours vorce and a Moines, anticipat- Dylan. of Des which was south For the first three years. During living ed to last four to five Kel- months in Sioux Falls ly’s residency, Dylan, Jason was able to reduce custody peti- divorce and just days three pending his work week to week. tion were Iowa. While the cus- *5 spent days tody petition He the other four Kirksville was pending, Kelly did not taking Dylan Kelly permit care of while was work- Jason more than a few hours ing. bring Dylan Dylan Jason would often back visitation with one time. him, to Des Moines with Jason 17, 2005, August On [¶ 7.] Iowa Dylan family stay worked would at the County District for Polk Court entered a baby home with a sitter until around 3 temporary custody and visitation order. return from p.m. when Jason would work. granted parties joint That order legal in Dylan stay would sometimes Kirksville custody Kelly with having primary physi- days for the three while Jason worked in cal Dylan. provided The order Moines, Des but due to the lack of a Dylan Jason twice a month visitation with baby Kelly’s long sitter and hours suitable Wednesday Sunday, from through which residency program it became diffi- required party City, each to drive to Sioux Dylan. cult for her to care for After four Iowa, exchange Dylan. The order did Kirksville, Kelly resigned months from yet not address visitation with the to be residency program and returned to girls. born twin Des Moines in the fall of 2004. theWith relatives, help Kelly of her to find was able by planned The twins were born [¶ 8.] residency program in a position Sioux 2006, cesarean section late November Falls, Dakota, to commence in South June original two weeks before their due date. July of 2005. girls did not inform Jason the were Kelly’s to be delivered on that date. sister couple planned The to relocate contacted Jason to advise him of their family to Sioux Falls over the summer. shortly births after the cesarean section time, they At that out found were performed. had been also named expecting girls. Kelly’s due date for twin input. the twins without his Jason imme- the twins was December 13. diately filed a motion for visitation with the twins, By early contending summer of resisted personal jurisdiction marital strained. lacked relationship became Iowa couple between the was over the twins. For the next twelve Communication twins, Kelly poor. parties breaking reached a months after the birth of the them to determine whether and how point argument when between was able granted That Ja- Kelly. care with order the twins have visitation would Jason all three of the children son visitation with by either Iowa any direction without weekend, visits every with three weekend court. Dakota court or South Falls and one Des per month Sioux would that she Kelly determined hours of granted four Moines. Jason for one-half the twins to see permit Jason Saturdays on time with the twins Dylan for his picked up hour before another three hours p.m., noon to each month and twice scheduled visitation in order to Sundays p.m. from 11 a.m. to he returned half hour when another feeding schedule balance their breast hour visits These half after visitation. The trial with their father. visitation lobby in Sioux in a motel were conducted holidays for Jason and open court left the that her Kelly informed Jason Falls. how to negotiate and determine not allow for feeding schedule did breast alternating holiday visitation implement an in half other than hour additional visitation was also A evaluation schedule. month. In the fall of increments twice a ordered, required party and each concerns about Ja- Kelly also raised an evaluator or submit agree either Robertson, fiancée, his Shelli son and by Decem- proposals their for an evaluator children, an accusa- around the smoking or- parties 2006. The were also ber eventually by the tion that was determined attempt dered to to mediate both meritless and an effort trial court to be visitation, with mediation to be com- contact limit visitation and further Jason’s pleted by January *6 with the children. Dr. parties selected Andre [¶ 12.] Dakota, living in South While [¶ 10.] mediator, and media- Clayborne as their taking Kelly pattern established a also attempted May. tion When media- emergency the children to routine successful, la- Clayborne tion not Dr. telling without Ja- appointments medical as the responsibilities ter assumed the Kelly unilaterally son until after the visit. custody Originally scheduled evaluator. determined that it was sufficient to advise of December completion by the end twenty-four hours after such Jason within delayed home studies were and Kel- place. had taken This appointment ly’s misplaced psychological evaluation precluded being part from Jason extend into the process caused the to issues. discussion of the children’s medical spring of 2007. by an- Kelly’s pattern was cited Jason as in- part to limit his other effort on her During process, the evaluation in the children’s lives. volvement Kelly to com- argued Jason continued by showing up plicate visitation In the Iowa court October times, bring the agreed upon refusing to motion pending dismissed the visitation Moines, refusing children to Des to work so that a proceedings and the holiday alternating out an visitation sched- Dakota court could determine these South temporary custody required by ule as immediately a motion issues. filed order, ignoring at- and at times Jason’s County with the Lincoln circuit court for In the tempts to communicate with her. for the custody of the three children and three fall of the children missed evaluator. appointment of visitations in Des Moines with the trial court ordered scheduled December period due to joint Jason over twelve-week temporary legal Kelly’s unwillingness inability or to travel time to enroll expire any to without input from Jason. permit and her refusal to the visitations in Jason was forced to accept Kelly’s unilateral decision on Falls. Sioux matter. Kelly provide also refused to Ja- Clayborne Dr. concluded in his information, records, with contact son custody evaluation report that both par- reports daycare providers from the various ents were fit. reported He also that he moving she had used since to South Dako- Kelly believed that had been the primary ta, which included three different nannies parent care when couple was married. daycare and two or three facilities. Jason Kelly’s Based on statements and focus on daycare to was able locate most recent interview, the issue during her Dr. Clay- by Kelly get used called more infor- reported borne that he Kelly believed daycare mation. The director told Jason slightly would be more in support- favored happy provide she would be information ing the parent’s other relationship with the once called and confirmed that However, children. Clayborne Dr. report- could be shared with him. refused ed to the court that it would not be in any approve sharing information placing error the children in either par- regarding with Jason the children Nevertheless, ent’s care. Clayborne Dr. daycare facility. Despite attempts two recommended that remain pri- subpoena daycare records provid- mary parent, receiving with Jason spent er as to the hours there liberal Finally, Clayborne’s visitation. Dr. children, cost, by Dylan in progress report indicated that review of “[i]n pre-school program, daycare documentation, this evaluator did not find claimed such documentation did not exist. any information which suggest would This left Jason without information children would significantly benefit from a about how the children were cared change custody.” work, ability was at or the *7 24, 2008, September [¶ 17.] in On trial on participate childcare decisions. All that time, finally the matter was At held. Jason could ascertain was that the children Dylan girls was five and the twin were generally were in daycare Monday through years During almost three old. his testi- Friday from before a.m. when had mony, Clayborne Dr. in testified that his work, at day to arrive until her work con- report he had recommended have placed cluded. also the children primary physical care. He also stated: neighbors family and when she was again, “But I don’t see Jason could on-call in the evenings or weekends and not be in that Dr. position.” Clayborne hospital, needed to be at also conceded on cross-examination that amount of time in spent day- the children delays the numerous proceeding in the by Kelly care was not disclosed even when Kelly’s to advantage giving worked her questioned at trial. primary parent, more time as the care Despite repeated attempts by which translated to more time to bond Jason, Kelly also refused to discuss wheth- prior with the children to the kindergarten er should attend hearing. Finally, Clayborne Dr. testified age fall of 2008 at five or wait until the that when he asked Jason and following year. Kelly discussed the matter working, whether the visitation both family, Kelly replied with friends and but allowed the Jason and that it was. maturely encourage matter, ity willingness to trial on the After meaningful con- frequent and provide of fact and and court entered trial Jason, and the children and law. It found tact between conclusions of numerous strong to foster the children’s relation- had formed had failed all three children gave parents and The trial court ship with both with Jason.” parental bond Kelly’s Ms. Robertson. deficiencies relationship significant weight to good prior to found that It further found that regard. trial court also The Dakota, and to effects Kelly moving potential South effects and “detrimental equally as to have shared Kelly appeared attempts to alienate the children Kelly’s tri- Dylan. caretaker ben- primary significantly outweigh the from Jason the evidence al court further found Kelly’s keeping efits of children equal fault were suggested parties both physical custody.” primary that resulted domes- for the disturbance Jason, trial regard With to against Jason charges tic assault credible court found him to be the more of 2005. summer was the It also found that Jason witness. regard to the issue of With willing maturely encourage parent most had served as the parent which frequent meaningful and con- provide and that Kel- the trial court found parent, care par- tact the children and other between primary physical caretaker ly had been strongly The trial court favored Ja- ent. moving since to South for the children regard. in this son further found that The trial court Dakota. The trial court also found Jason delays in significant Kelly had caused greatest demonstrated the commitment legal proceedings, custody evaluation responsible the children for adult- prepare pri- gave advantage her an as the which hood, ability provide ex- greater during the time the mat- mary parent to be a emplary modeling of what it means pending. ter was While determined good parent, loving spouse, responsi- spent significantly more the children had It if the children ble citizen. also found they than had in Kelly’s time in home custody, in Jason’s would be were Jason’s, court found no substan- the trial likely spend daycare time in due to less suggest the children would tial evidence to flexible work schedule and Ms. Jason’s fully adjust quickly not be able to assistance, compared to Kel- Robertson’s majority of their time Ja- spending resident, long hours as a which re- ly’s It also found that the evi- son’s home. *8 daycare the children to be in most quired formed a suggested dence the children had days before 8 a.m. It found that Jason had closer attachment somewhat strong relationships with his extended being Kelly’s opposed to Jason due family. However, trial court primary care. healthy at- strong
was convinced The trial court did not find Kel- and Ms. Robertson tachments to Jason ly’s primary parent role as care for the family extended existed such Jason’s two and one-half to three and one-half past likely experi- not the children were satisfactory experience. It years to be a difficulty adjusting to significant ence the best interest of the concluded primary parent. Jason as the required placed them to be children care, subject to primary physical The trial court also found Jason’s Kelly’s right to exercise reasonable and “profound lack of abil- had demonstrated
843 1991)). granted liberal visitation. visi- “We will overturn the trial court’s every tation other weekend and alternat- findings of fact appeal only when a ing holidays, with an extended summer complete review of the evidence leaves the period visitation of nine weeks. In its Court with a definite and firm conviction law, conclusions of the trial court reviewed that a mistake has been (quot- made.” Id. Fuerstenberg v. Fuerstenberg, 1999 ¶ SD Jacobsen, ing Miller v. 33, 19, 2006 SD 35, 798, detail, 591 N.W.2d factors in 76). 69, 714 N.W.2d align did not each of fact under one
of the factors. AND ANALYSIS DECISION best of Kelly appeals interest raising one issue: child standard is used a trial court
Whether the trial court abused its dis-
parents
when
judicial
seek an initial
deter
cretion in rejecting
evalua-
mination of the custody of their children.
removing
tion and
the children from the
Kolb,
(S.D.
Kolb v.
324 N.W.2d
primary caretaker.
1982). Such a hearing does not require
party
requesting
change
in a
STANDAED OF EEVIEW
temporary custody order show a substan
tial
change
circumstances.
Id. The trial
recently
This Court
reit
court considers the children’s temporal,
erated the standard of review for child
mental, and moral
welfare
determining
custody decisions:
the best interests of the children. Fuer
Child
decisions are reviewed
¶35,
stenberg,
1999 SD
591 N.W.2d at
this Court under the abuse of discretion
25-5-10;
(citing
Jopling
SDCL
v. Jo
credibility
standard of review. The
(S.D.1995)).
pling, 526 N.W.2d
witnesses and
weight
afforded to
may,
The trial court
but is not
testimony
required
their
is also within the discre-
“
to,
following
consider the
tion of the trial court.
factors in de-
abuse of
‘[A]n
termining
discretion
the best interests
refers to a discretion
and welfare
exer-
fitness,
parental
stability,
cised to an end or
the child:
purpose
justified
caretaker,
by,
and clearly against
preference,
reason
child’s
and evi-
”
misconduct,
dence.’ An
harmful parental
abuse of discretion
separating
occurs
child
proceeding
siblings,
when the tri-
and substantial change of cir-
¶¶
Id.,
al
24-34,
court’s review of the traditional fac-
cumstances.
1999 SD
bearing
tors
on the best interests of the
upon a finding that the trial court pacity disposition provide abused its discretion. *9 food, protection, child with clothing, ¶ Schroeder, care, needs; (3) 1, 37, Pietrzak v. medical and other 2009 SD basic 759 (internal 734, love, ability give affection, N.W.2d 743 the citations omit- child ted). Furthermore, uphold guidance, we will education impart and to the (4) trial court’s findings family’s creed; of fact religion willing- unless are or clearly erroneous. (citing Id. v. to maturely encourage provide Anderson ness and Anderson, (S.D. 519, 472 N.W.2d 520 frequent and meaningful contact be-
844 it in custody disputes because is parent; ing child child and the other
tween
listing
priority
first order of
(5)
child for
prepare
commitment
Kelly
factors.1
re-
Fuerstenberg
under
in-
adulthood, well as to
as
responsible
many jurisdictions give
fact
lies on the
that
a fulfill-
experiences
that the child
sure
caretaker
in
primary
to the
preference
(6)
childhood;
model-
exemplary
and
ing
as noted
determinations
child
firsthand
witnesses
ing so that
child
Price,
64,
in
2000 SD
this
Price v.
Court
good parent,
it means
be
what
¶
32, 611 N.W.2d
433.
citizen.
responsible
and a
loving spouse,
have
acknowl
[¶ 29.] We
¶1, 41,
Pietrzak,
N.W.2d at
SD
759
2009
place great
edged
jurisdictions
that other
¶35, 24,
1999 SD
(citing Fuerstenberg,
744
on
than others.
emphasis
er
this factor
807-10).
at
591 N.W.2d
¶ 35, 28,
1999 SD
(citing Fuerstenberg,
Id.
808). However,
at
we have
591 N.W.2d
that
Kelly argues
appeal
clear
trial court ana
always been
that the
in remov-
its
abused
discretion
trial court
making custody
lyzes various factors in
primary physical
from her
ing the children
determinations,
parent
including which
First, Kelly con-
for three reasons.
care
caretaker of the
primary
served as
disregard-
improperly
trial court
tends the
¶ 18,
Id.
at 430. We
children.
611 N.W.2d
caregiv-
primary
as
Kelly’s position
ed
never held that
this factor should
have
Next,
the trial court
argues
she
that
er.
all
a trial
prevail over
other factors
rejected
it
the cus-
improperly when
acted
Rather,
factor
may consider.
this
assists
fa-
in
Kelly
determining
was
the trial court
which of the
tody
finding
evaluator’s
to the
parents
more devoted
children
parent
encouraging
more
vored as the
as well
prior
custody dispute,
to the
relationship with the other
the children’s
time,
parent
predominant
“which
invested
tri-
finally, Kelly argues that
parent. And
consistency
raising
and
the child.”
care
ratio-
it
no
provided
al court erred because
¶ 33,
(quoting
Id.
and did not involve him edu- signif This becomes more cational, daycare decisions. There Kelly’s given credibility icant lack of examples than these were more three cited expert’s testimony court. “An the trial court’s of fact the trial It more reliable that its foundation. no support the record to the ultimate nothing supportive factu proves without addition, repeated- decision. Jason may only if prove al basis. It little partial ly denied reasonable time with his children ly supported a factual basis.” In re holidays and with the twins for during ¶15, M.H., 2005 SD 691 N.W.2d consequence, year first of their lives. As a omitted). (internal Although citations Jason was forced to file motions with the otherwise, Clayborne Dr. concluded every holiday court almost due to Kel- trial court did not abuse its discretion ly’s negotiate alternating refusal to holi- determining custody with Jason day the trial schedule ordered court in the best interests of the children. had to December He also seek reasonable orders establish visita- twins, tion which was estab- prefer- Trial Court’s stated reasons for one-year-old. until the were ring lished twins over have an evidentia- ry basis record. retry asks this Court to [¶ by identifying examples the case a few Kelly argues the trial anecdotes, viewing rather than the record as whole together court stitched three by Jason, light Fuerstenberg of the factors. This based on bare to ar assertions entered rive at the was en- we will not do. trial court conclusion
847 the findings support attorney adopted of fact that have the father’s were verba- Many of law tim. of findings record. It then entered conclusions these are over- and, instances, findings reaching on of fact in several wholly based its which serving. self Fuerstenberg the It addressed factors. engaged systematic ap- in a and balanced Of all [¶ the a trial 46.] cases on court’s best
proach under the interests standard. docket, child disputes may be the The result was a determination that ad- most difficult and judges contentious. Yet dressed what the trial court to be believed fray. must remain above the “Balanced in the best of interests the children based methodical,” a judge’s custody and decision all the evidence submitted. find no We impartial should reflect patience and care- by of the trial abuse discretion court. ful deliberation and be couched in the dispassionate court’s own language. Fuer-
[¶ 41.] Affirmed.
¶35,
v.
stenberg
35,
1999 SD
Fuerstenberg,
591
Findings
N.W.2d
tainted
ZINTER, MEIERHENRY,
[¶ 42.]
and
promote
one-sided excess fail to
SEVERSON, Justices, concur.
appearance of neutrality
fairness.
KONENKAMP, Justice,
proce-
Under our
of civil
rules
dissents.
dure,
all
upon
“In
actions tried
the facts
...,
jury
without a
shall ...
court
find
KONENKAMP, Justice (dissenting).
specially
separately
facts
and state
its
”
Judicial decisions on
children’s
conclusions of law thereon....
SDCL 15-
highest
lives deserve our
effort. Here is 6-52(a). “Alternatively,
court may
di-
place
no
perfunctory procedure.
For
rect
prevailing party
counsel
reason,
I cannot
trial
endorse the
findingsf,]” and,
prepare
upon expiration of
process.
court’s flawed
Although
applicable
proposed
time limits for
court at the
of trial
oral
close
issued an
objections,
“the
findings
court shall
bench,
decision
which remarks
findings
make
enter such
and conclu-
part
form
of
findings,
the written
much of
may
proper.”
sions as
be
SDCL 15-6-
findings
signed
pro-
the court later
52(a)
added).
(emphasis
By using the
posed by
counsel
winning
reflect not the
may
proper,”
term “as
be
the rule contem-
expression
judicial thought
of independent
plates
judges
study
will
the proposed
the rhetoric
adversarial
of
excess.
findings,
everything
suitably
eliminate
determination,
part
add what may
If trial
fail to
care-
courts
“make
out,
self-servingly
have been
left
and en-
study
suggested
ful
of the
in all
findings
all
applicable
sure that
material
facts
official,
their bearings
making
before
them
end, attorneys
laws are covered.
In the
quite
is
liable to lead to
[it]
bad results.”
court;
findings
can
for the
can-
draft
Gilchrist,
Harrigan v.
121
99
Wis.
findings
not make
for the court.
(1904).
findings
N.W.
The fact
points
this Court
to as
conclusions
Certainly we have held that ab-
were,
exemplifying a sound decision
judicial
“becoming
stamp,”
sent
rubber
substance,
largely
win-
conceived
adopt
court
the “discretion to
those
has
ning
exception
side.
three
With
of fact
findings
and conclusions
law
stylistic changes
hand-written
trial
appropriate, regard-
which it deems most
made,
all
proposed
less of their source.” See Feldhaus v.
¶
word
Schreiner,
65, 14,
ly
guarantee
and would
that each
646 N.W.2d
SD
Rob-
impartially
of law
acceptance
chosen[.]”
757. But uncritical
*13
erts,
(citing
Dreyfus
be con
findings can never
part recognized as in Lansford-Coaldale According these children.” Corp., Water Auth. v. F.3d Joint Tonolli visitation, mother, handling in her (3d Cir.1993). And, impor- just as misconduct parental guilty of “harmful tant, litigants reviewing court which has detrimental to the chil- been judge con- thoroughly can know that the ” comments, the .... But in its bench dren sidered all the relevant facts and issues nothing court said about children hav- involved. detriment, ing and the rec- exhibited According is barren of such evidence. ord findings attention [¶ 50.] Careful personal to the neutral evaluator’s assurance, Judge Wisdom offers observations, wrote, “the children are bonded trial judge “that did indeed relationship parents. questions thorough- good have a with both consider all the factual Finding following changes added 2. handwrote the find” "further.” court Finding supple- findings: “or added "reasonable and liberal.” Finding ments.” "and does added so They appeared comfortable safe order visitation. She is faulted parents.” of their the care of each for not granting the father “additional” or “extra” time with the children. And even investigation During though beyond it was contention that the process, expressed concern the mother children were “more closely attached” to smoking about the his father and fiancé mother, twins, especially the such was presence children. find- of the deemed be a “minimal ings, we that “the court read finds *14 advantage.” accusations in regard [the mother’s] smoking the children made in around were In the spring [¶ 55.] of the father justify an effort to further of limitation was arrested domestic assault on the with [the father’s] visitation contact mother. He later received a deferred sen- Yet, trial, the children.” at father a tence on reduced of charge disorderly admitted that he and both his fiancé conduct. The mother at testified trial that smoked. He testified: “We never smoked she thought the father going to kill in the and I subse- house. Shellie have unsure, court, her. Apparently when it quently quit smoking.” He assured trial, commented this at the close of healthy court that it he knew “was not a that will remarked “none of us ever be then, thing[.]” Why, would the mother’s fully happened able to sort out what finding concern about this translate into a Yet night.” as crafted father’s of obstruction? How would know she attorney, finding court’s number 43 whether the father and his still fiancé were proclaims: “The suggests evidence smoking and where? parties both were likely equal most fault during the disturbance which led to [the findings contain more arrest.” father’s] these inferences one-sided and contrived inadequacies. part In the latter Initially, a restraining there was example, number an- the court order, eventually but was lifted. That nounces there is “little evidence to indicate summer, divorce proceedings commenced strong the children have a relation- courts, mother, in the Iowa and the an ship any [the extended mother’s] M.D., moved to Sioux to begin Falls a family.” findings Fact should be based on residency. medical On November fact, obviously, having some connection gave birth in she Sioux Falls to twin produced evidence at trial. evi- No girls, During Faith and Grace. these finding. dence supports Not the cus- times, admissions, parents’ own tody evaluation. Not even the father’s they were unable to talk each other. testimony. “pri- Communication between them was marily by means of email.” As the Repeatedly, connection with testified, evaluator communication visitation, “[T]he language findings we see in the jush-is just people between these two describing having the mother as “demon- just It’s I think non-existent. not there. pattern,” profound strated “a lack of things tend ability or both to hear from their willingness,” “pronounced ina- bility vantage point, major-of all own is a willingness,” raising “serious concerns,” major manifesting findings, But concern.” Yet the “deficiencies.” findings acknowledging single parents nowhere is there a that “both have ex- statement perienced difficulty the mother violated some with the commu- father would have been another,” ing guidelines, the heap the one nication between more, especially daughters able to see his communication on lack of blame for older, he not have they grew was all done to as but would that it mother and deduce infants to nursing the children. been to take these deny contact with able the father spend Des “to travel and West Moines disturbing are find- More overnights See significant time in visits.” to nurse ings on the mother’s decision A, (Appendix ch. 25-4A Guidelines SDCL infant nurs- daughters. Even parties’ twin 2.3). 2.2 and court’s ing portrayed Finding 97: finally number fact, obstruction. when case up hearing for a on interim visita- came decision nurse [The mother’s] tion, judge another circuit heard extreme, and was taken to an children 2006 and noted that matter December nursing her perceived she interest visitation for these overnight extended *15 fa- superior to that [the children as not “If folks practical: you babies was develop meaningful a right to ther’s] ten, miles, few fif- living were within a early at relationship with the children other, teen, the twenty of each miles pursue rea- age. mother] failed to [The any- looking be at contact court would supplements to alternatives or sonable times or from two to three a week where feeding, the which alternatives breast time, a for or hours at two three not with fa- [the would have interfered relationship depending upon even relationship with the children. ther’s] exists, maybe an visit. overnight the court’s rather This does reflect But here.” Nonethe- that’s realistic said, oral remarks. The court uninformed less, despite guidelines our and the other why “I see reason these children should no ruling, judge’s the mother’s “extreme” spend travel and not have been able to nursing yet ground became another significant overnight time in visits with justify pri- placing courts their their father within weeks of birth.” custody with the father. mary physical all, living father was First troubling are mat- Most those Moines, in West Des almost three hundred findings. ters from the Octo- absent On Falls, did miles Sioux and he see from a appointed ber the trial court up drop came off girls pick when he custody expert, child Dr. Andre neutral son, Dylan. their His contention was older study B. Clayborne, perform home girls lobby in a hotel visiting Clayborne’s single- evaluation. Dr. every an hour two weeks was not suffi- spaced, twenty-two page report was com- Clearly inadequate time. cient. May 26, He pleted thoroughly But it father testified that at was the who situation, par- examined children’s exchanges his he needed “the insistence history, pro- psychological ents’ and their public occur in a location.” Hence conducted, Separate testing was files. agreed lobby. in a to meet hotel reviewed, and the collateral contacts were capa- parents’ assessments of each other’s Second, year after over explored. preparing his bilities were their birth there was no order report, Clayborne Dr. conducted home place visitation for these infants. regarding moth- the children both the If been an order visits with there had entered father’s er’s home Sioux Falls parent- accord South Dakota’s shared Des home West Moines. He found the methodical balanced and decision maker parents. justify children to be bonded to both not even considering however, analysis, In the final he recom- recommendation made the court’s own mother appointed mended “continue to be expert? parent,” the children’s Unquestionably, there was testi- receiving
the father
liberal
He
visitation.
mony by the father on his frustrations in
noted that he “did
also
not find
infor-
communicating with the mother on all mat-
suggest
mation which would
the children
dealing
ters
with their children. Even if
significantly
would
benefit
a change
the court accepted
grievances
these
undig-
custody.” Quite
opposite,
accord-
ested, to
base
decision on one issue—
to Dr.
ing
Clayborne, “there was informa-
inability
agree
on childcare and visita-
suggestive that separating
tion
the chil-
ignore
tion—is to
totality
factors a
primary caregiver may
dren from their
court should examine as set forth in Fuer-
actually be detrimental to them.”
stenberg. Those factors were recited in
sure,
To
findings,
be
no court is bound
hinged
decision
on the
perceived
evaluator’s recommendation. mother’s
obstruction.
“Child
long
We have
held that
disputes
decision makers
should not be decided
disregard
solely
are entitled to
an expert’s opin-
listing
on a
of faults ascribed to one
*16
¶
if it
unworthy
35,
ion
is found to be
of
parent[.]” Fuerstenberg,
23,
cre-
1999 SD
Still,
dence.
the reasons
having
a
testify (citations omitted). be 167-68 To answer concerning and could more be might kids,” appropriately all can review question, he also we damaging potentially findings are the stilted and conclusions the court would err said, think “I don’t Far being entered here. balanced parent’s pri- kids in either placing these methodical, and offer little these mary care.” gave impartial assurance Nonetheless, process used in to all the circum- consideration relevant True, was flawed. rendering this decision stances. is of review abuse of discre our standard tion, choosing two satisfacto between prone are all to error [¶ 68.] We judge’s ry “falls within a discretion.” parents decisions, press making difficult Arneson, v. 2003 SD Arn eson difficult, heavy caseloads can be but for ¶ But that does 670 N.W.2d process aspires of a truth sake did, inquiry appeal. on If not end our accuracy, decisions should be couched dispute every custody between fit then makers, language in the of the decision way parents be unreviewable. One would reflecting independent own their observa- wrong made whether a court discern judicial reasoning. process tions and Our process decision to examine the is adopts when a court over- demeaned making that decision. “A judge used reaching findings pre- and unwarranted in the is easier to detect than process flaw winning pared counsel for side. v. result[.]” flaw United States (7th Beasley, F.2d Cir.
1987). just function principled “The system care
ing judicial depends at
ful observation the rules that focus *17 grounds proper
tention decision.”
Id. Did circuit court focus atten- proper grounds
tion on the for decision? so, definition,
Failing to do constitutes Willoughby abuse of discretion. v.